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IN THE HIGH COURT OF TANZAi1IA (PC) OVIL AIPEAL NO.7 OF 1998 (om the decision of the District Court of Kyela District at Kela in Civil Appeal Noo70 Of 1997 and Lusungo Primary Court Civil Case No196/97) AMANYISIE ]WiAKYALABAS........,S.O..6APPELLANT VERSUS MWEW(EKITI WA SERIKALI YA KIJI CHA LUSUNGOS . • • • . . . . a . .. . ESPON]NT JtTDGENT i4AKANi& JI The litiganis originally hailed., from one village. It seems that they no longer live in one neighbourhood.. What nakes matters more complex is that the two lower courdo not concur in their findings of facts. After perusing the rscord of proceedings of these courts I am settled that the facb are more concisely put by the appellate District Court, Ace ordirig to Me shaki Mwaki se ke le (su. 1) , the Lusungo Village Chairman, the village government allocated, the suit tract of land. to Laden James, who was impleaded as the second defendant, after it had been abandoned by the appellant. Due to ne gle et the farmland was overgrown with thick ye gi tati on, The appellant abandoned it after he fled from his home in 1975 following accusations that he had stolen paddy belonging to one Mwambili, his. neighbour. He settled at Ipande from 19754. He emigrated to Lukama village the following year. 2 The appellant claimed that he left the area in 1979 after the land was hit by floods. I am satisfied that the real reason for his absence were not floods; he was fleeing not from floods but from obvious embarrassment from the evil he is alleged to have committed in the village • In any case those who were driven out of their homes by floods returned to their lands in 1983. The appellant did not; he returned there in 1995. In the meantime the suit land was re—allocated in 1989 after all efforts to call the appellant proved futile because he declined any intimation to return to the village. So from 1975 to 1989 when the land was re—allocated a period of fourteen years had ellapsed.. The suit having been instituted in 1997, the appellant was away from his land foxa period of twenty.-two years, of which the second appellant had been in peaceful occupation for about uinëer' Jovrer, even though the trial court made correct findings of fact, it reached a deci sion that was completely at variance with the evidence s It found for the appellant who was the plaintiff. He lost before the appellate District Court. Hence this appeal. Mr. Mwako].o, learned counsel for the appellant has .raised twqro1mds:.' 417pt y,, that the appellate, District. Cort.. good deciion of the trial primry court. Lwquld npt .say, that heis right, because it.is only true that tbatde.cision isaain e.vveightof evidence as held by.thê appellate Thstict Courtalthôfr it did ri&t sy u so many swords, Distri.eb oUght to have decided the appeal in Second, favqr of.. the ,appè11a4t in the circumstaice sof thi5 ea. .ir.IVIwako10 cntnds that .the District Court erred when it allowed the appeal,on the ground that the suit was tiinø- barre4. He bases his argument on the occurrence of the floods ' H .. . . . I • . . .- T L Jq i ck GL : 2cr r-OOU i:; 4 .Tj. Qi L- CO ;J Xja ;+ • Jjt . _ jc; Tu - •.;1J i: ' r ur 2 IJ;h r ri &;jz j '3 i- ( jG nj T;JiE LJ:r)c; :Ls 1TT;.c: cgTCJ YO4! itG tc ., I MO . - jG4 T; C 0 JthLGP. L° 4 : jcj )C5OT 1 j5 cbcJ'G tr-c-3 Oor-Lp' HGL(' IJ bTrJ.pL:r0 c] Hs a -1'. L 1i .:;M; CO44E3 < T ATLV P TG ç; :.c. . cG :(rk;c -t ': c' 19; s 3 OJZIJ -°' f1rc . IfjC :( TJ i4TJ3 -' .'JI : . : i e , • i .J rc -1 Lrt: CT) : r_ I e coug1 rA3 I - o: $ thuc fG CZrrPOrcj .All - c-ç '- TIJ r 1n;roa • jc-;• LT 5.T T OTJfi .fLfSE }J-I- • tr 4• )9 Ta •\ •4J hLOeg :JT:fT6 frEi }36 ciyT i ç.o ST-fJ9 62Lp LTVO J1]LN. )rL - (cr LGTT3J3J qTq• )4 )'G LGLIJGq ppLG Ty T'qT TT luG -I1T 1hGET -• S c.}JETL Jp? TTOOC2 C4LIJJq 4O 4JGTL M1JCSiGL GflJAO3 OrO TJflJ tJc 1i)24 ti)GTLG . DT f'LTC4 Cc JTr P. i.3JC -r - € T.0 IO1 :)L •JG (A50 MT4 ciss cATqJc; )A fd cr' Jbt ,11J •T•T - 46 fkJGfJ ) rJ1-Di Uity OT L CTTSJ1 zv oocfft FJcpt,. fT C )T 0 j, 13 8 4W 2eco'Jq r:10 .t!•- utpquN IbbGITGUJG$Sc.OJ •:1J Sq LGYTTO- Do,rog i ofiL6GJ ?6L9 _n'D 1'' • fT TIJG cuSjA •pIc 4J4 OIj UO4 T2 'jYf! PGC112G 1 P x [ E. pecic2€ jJG